2019 Supreme(Mad) 1435

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. SUBBIAH, B. PUGALENDHI, JJ.
The Principal District and Sessions Judge, Theni – Petitioner
Versus
Kattavellai @ Devakar – Respondent
Referred Trial (MD) No. 1 of 2018
Decided On : 13-03-2019

Headnote:

Indian Penal Code,1860 -Sections 302 (2 counts), 379, 376 - Criminal Procedure Code,1973 - Section 174,313 and 366 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act - 3(2)(v) - Indian Evidence Act,1872 - Sections 25,27,114(a),114(g) - Appeal Against Conviction - Rape Case - Offence of murder - In year son of name was pursuing his first year B.A degree course in an Arts College at Theni - Daughter of by name was also pursuing B.Ed course in a College for Women at Theni - Both belonged to scheduled castes and they loved each other - Took in a motorcycle bearing Registration to Surli falls without knowledge of their parents - When were in search of an isolated place to have a pleasant time - At about they met and his lover by name who were sitting near a channel situate on pathway leading to Kailasanathar Temple and having their tiffin - Thereafter parked his vehicle on road - Then went at a distance of mt away from place of and his lover - At that time accused came to place where and his lover were sitting and threatened them with aruval to part with their jewels - Stated that jewels worn by his lover were imitation jewellery - However accused threatened and his lover to part with jewels and accordingly jewels were given to him - When accused received jewels noticing that they are imitated jewels he hurled it towards them and abused for wearing imitated jewels - Thereafter accused proceeded to place where were sitting which have noticed - Also witnessed accused having some conversation with - Fearing for their life and safety fled away from that place thinking that accused will let scot free by merely threatening them - It is further case of prosecution that accused threatened with an aruval and demanded that jewels worn by be entrusted to him - When refused to part with jewel accused cut both side of neck of with aruval and brutally murdered him - When attempted to flee away from place of occurrence accused chased her gagged her nose and mouth with a towel and made her to suffocate - Thereafter accused forcibly raped besides he cut her hands and legs brutally which resulted in her death - After unleashing such an act of brutal crime on hapless victims accused robbed gold chain handbag and tiffin box and then fled away from place occurrence - On next day morning along with his relatives came to Office of along with other officials searched in forest area - On way to Kailasanathar Temple at Post a foul smell emanated and on a search they found a male dead body in a decomposed condition with face lying down with black shirt black pant and shoes - They have also sensed that a foul smell which emanated from northern side of said place and therefore they proceeded towards that direction where at a distance of meter they found a female dead body in a decomposed condition lying with face down with saree - Thereafter came out of forest and took and his brother-in-law to identify dead bodies - Identified that male dead body is his son and his brother-in-law identified that female body is daughter - On same day proceeded to Rayappanpatti Police Station and gave a complaint in this regard - In stated that there is suspicion over death - Whether trial Court is justified in inflicting a death sentence on accused or such punishment imposed on accused is required to be interfered with by this Court - Whether is in forest or not - Since it was late evening refused to allow them to enter into forest and asked them to come in morning - Whether it amounts to a confession or not as relates distinctly to fact thereby discovered may be proved - Question whether accused is guilty of offence charged against him unless it is connected with offence - Whether there is link between objects recovered and offence - Held, Therefore it is clear from above ratio consistently laid down that fact discovered embraces place from which object is produced and knowledge of accused as to this and information given must relate distinctly to this fact - Further conduct and concealment are incriminating circumstances - This conduct substantiated by discoveries constitutes evidence - Supreme Court has further reiterated in a catena of decisions that point out a material object by accused furnishing information is not a necessary concomitant of Section 27- Though in most of cases person who makes disclosure himself leads police officer to place where an object is concealed and points out same to him however it is not essential there should be such pointing out in order to make information admissible under Section 27 - It could well be that on basis of information furnished by accused investigating officer may go to spot in of witnesses and recover material object - In light of above proposition confession of accused could be treated as an information leading to a discovery of fact as mandated under Section 27 of Evidence Act - There is one more point which Court would like to discuss i.e. whether pointing out a material object by accused furnishing information is a necessary concomitant of Section 27 - Court think that answer should be in negative - Though in most of cases person who makes disclosure himself leads Police Officer to place where an object is concealed and points out same to him however it is not essential that there should be such pointing out in order to make information admissible under Section 27 - It could very well be that on basis of information furnished by accused Investigating Officer may go to spot in company of other witnesses and recover material object - By doing so Investigating Officer will be discovering a fact viz concealment of an incriminating article and knowledge of accused furnishing information about it - In other words where information furnished by person in custody is verified by Police Officer by going to spot mentioned by informant and finds it to be correct that amounts to discovery of fact within meaning of Section 27 - Of course it is subject to rider that information so furnished was immediate and proximate cause of discovery - If Police Officer chooses not to take informant-accused to spot it will have no bearing on point of admissibility under Section 27 though it may be one of aspects that goes into evaluation of that particular piece of evidence - In Court considered opinion formed a complete chain and it unerringly pointed towards guilt of accused - Court firmly hold that above offences were committed by none other than accused in this case - There is no controversy that murders of and robbery and rape of had taken place in one and same occurrence - Therefore person who committed robbery and rape had committed murders of as well - From recovery of stolen articles more particularly gold-chain and aruval from custody of accused and fact that accused was found in possession of soon after commission of robbery as well as other stolen articles as discussed above and DNA reports presumption under Section 114(a) of Evidence Act clearly goes in favour of prosecution - Said legal presumption also duly corroborates other evidences so as to hold that this accused alone committed murder of and robbery rape and murder - Court firmly hold without any shadow of hesitation that it is only this accused and none else who committed gruesome murder of and other crimes - Accordingly accused is liable to be punished - Arrest of accused and recovery made based on confession of accused - Village Administrative Officer has also corroborated version - It is therefore connection of thing discovered which render its discovery a relevant fact - Connection between offence and thing discovered may be established by evidence other than statement leading to discovery but that does not exclude proof of connection by statement itself - It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty - Community may entertain such a sentiment when crime is viewed from platform of motive for or manner of commission of crime or anti-social or abhorrent nature of crime such as for instance Manner of commission of murder - Ordered Accordingly